into the custody of one Vernon Sharp, to be taken back to the State of Tennessee, from which he had fled, pursuant to a requisition of the governor of that State. The warrant recites the following facts as having been established before the governor of this State. "It having been represented to me by the governor of the State of Tennessee that Charles E. Corkran stands charged in that State with having committed therein, in the county of Davidson, the crimes of larceny and false pretences, which the said governor certifies to be crimes under the laws of the said State, and that the said Chas. E. Corkran has fled therefrom and taken refuge in the State of New York; and the said governor of the State of Tennessee having, pursuant to the constitution and laws of the United States, demanded of me that I cause the said Chas. E. Corkran to be arrested and delivered to Vernon Sharp, who is duly authorized to receive him into his custody and convey him back to the said State of Tennessee, which said demand is accompanied by copies of indictments, and other indictments, duly certified by the said governor of the State of Tennessee to be authentic and duly authenticated, and charging the said Chas. E. Corkran with having committed said crimes and fled from the said State and taken refuge in the State of New York."

Corkran procured a writ of habeas corpus to issue for the purpose of obtaining his discharge. On the return of the writ, the attorneys for the parties stipulated "that three indictments were attached to the requisition papers, sent by the governor of the State of Tennessee to the governor of the State of New York, for the extradition of Chas. E. Corkran, that each of said indictments was found on the 26th day of February, 1902, and that the alleged crimes were charged in said indictments to have been committed on the 1st day of May, 1901, on the 8th day of May, 1901, and on the 24th day of June, 1901, respectively." It was further conceded by counsel of the respective parties "that the relator was not within the State of Tennessee between the 1st day of May, 1899, and the

1st day of July, 1901." It was also conceded that the relator

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was in the State of Tennessee on the 2d day of July, 1901." Taking the two stipulations together, it appears that the relator was not in the State of Tennessee on the dates charged in the indictment, but that he was in that State eight days. after the date charged in the last indictment. In no place is it stipulated that he was not in the State at the time the offenses charged were committed. If this was an accidental omission, it has not been supplied by any of the evidence before us. relator subscribed and verified the petition upon which the writ of habeas corpus was issued. In it he alleges "that it did not appear that there was any evidence before the governor of the State of Tennessee at the time he issued his demand that your petitioner was personally or constructively within the limits of the State of Tennessee when the crimes are alleged to have been committed." In his affidavit traversing the return to the writ he states that he had read the indictments be fore the governor of the State of New York upon which his warrant of arrest was issued and that those indictments charged him with the commission of the crimes of larceny and false pretenses, specifying the dates named in the indictments. He then states that he was not in the State of Tennessee at any time during the months of March, April, May or June, 1901. He also was sworn upon the hearing and gave oral testimony, in which he reiterates that he was not in the State of Tennessee during the dates mentioned in the indictments, but concedes that he was there on the 2d day of July, 1901. In neither the petition, affidavit or testimony does he swear that he was not in the State when the offenses charged were committed, but has refrained from so testifying.

There are cases in which time is a necessary ingredient of the offense, as, for instance, the violation of the Sunday laws; but, barring a few exceptions, I do not understand that the precise time is a necessary ingredient of crimes, either under our Code or the common law. Section 280 of our Code of

Criminal Procedure provides that "the precise time at which the crime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime.” This provision of the Code is a substantial enactment of the common law upon the subject. (2 Hawk. P. C., 2 Ch. 46; 1 Hale P. C. 361; 1 Arch. Crim. Pr. 85; Com. v. Harrington, 3 Pick. 26; People v. Stocking, 50 Barb. 573; Regina v. Firth, 11 Cox C. C. 234; People v. Emerson, 25 N. Y. S. R. 466; People v. Jackson, 111 N. Y. 362-369.)

As we have seen, the last indictment charged the crime as having been committed on the 24th day of June. Time is not a material ingredient of the crimes of larceny or false pretenses; it would, therefore, have been competent upon the trial to show that the offenses charged were actually committed on the 2d day of July, when the relator was in the State, instead of the 24th day of June. The indictments were before the governor; they charged the commission of the crime of larceny. The usual allegation is that he did then and there take, steal and carry away, which imports the presence of the person charged. Under the statute a charge may be established before the governor by the production of a copy of the indictment. It, therefore, furnishes some evidence upon which the governor may act. As we have seen, the relator has neglected to show, either by stipulation or by his own testimony, that he was not actually present at the time the offenses charged were committed. He has confined his testimony to showing that he was not there on the particular dates specified in the indictment. This is not sufficient. It consequently follows that the contention of the relator to the effect that the governor had no power to issue the warrant for his arrest and his return to the State of Tennessee for the reason that he was not personally present in that State when the offense was committed is not raised by the record in these proceedings.

The warrant upon which the relator is detained recites all the facts necessary to give the governor jurisdiction to issue it. It is not contended that it is informal or defective in any particular. It recites that the governor of Tennessee presented papers to the governor of this State, duly authenticated, including copies of the indictments found, charging the relator with having committed the crimes of larceny and false pretenses in that State, and that he "has fled therefrom and taken refuge in the State of New York." This, if true, is sufficient to authorize the governor of this State to issue the warrant for his arrest and return to the State of Tennessee. The papers presented to the governor, upon which he made his determination to issue the warrant, have not been returned or their contents made to appear by the relator, either in his petition or traverse. They, consequently, are not before us, and we are unable to determine whether the conclusion of the governor was proper or without support of evidence.

In the case of People ex rel. Draper v. Pinkerton (77 N. Y. 245) the question under consideration appears to have been squarely decided. It is stated in the opinion that "the only material question which seems to be presented in this case is whether a warrant of the governor of this State for the arrest of a fugitive from justice of another State containing the recitals of facts necessary to confer authority under the constitution and laws of the United States is a sufficient justification for holding the prisoner when up on habeas corpus, without producing the papers or evidence upon which the governor acted. We have no doubt but that the recitals are to be taken as prima facie, at least, true, and that the return setting forth the warrant containing such recital is sufficient."

In the case of People ex rel. Jourdan v. Donohue (84 N. Y. 438), FINCH, J., in delivering the opinion of the court, "The sufficiency of the executive warrant to justify the detention of the prisoner is the sole question raised by the writ of habeas corpus, and presented on this appeal.

says:

Where, however, the papers upon which the warrant is founded are not produced, but are withheld by the executive in the exercise of his official discretion and authority, we can look only to the warrant itself and its recitals for the evidence that the essential conditions of its issue have been fulfilled." He then proceeds to state that all the essential requirements of the constitution and statute are contained in the recitals of the warrant, and concludes by affirming the order dismissing the writ of habeas corpus.

In the very recent case of Terlinden v. Ames (184 U. S. 270-278) Chief Justice FULLER says: "The settled rule is that the writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition proceedings, if the committing magistrate has jurisdiction of the subject-matter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on habeas corpus. (Ornelas v. Ruiz, 161 U. S. 502508, and cases cited; Bryant v. United States, 167 U. S. 104.)" And again, he concludes by saying: "The decisions of the executive department in matters of extradition within its own sphere, and in accordance with the constitution, are not open to judicial revision; and it results that where proceedings for extradition, regularly and constitutionally taken under the acts of Congress, are pending, they cannot be put an end to by writs of habeas corpus." (See, also, Matter of Clark, 9 Wend. 212.)

In the case of Roberts v. Reilly (116 U. S. 80) we have a case in many respects very similar to the one under consideration. In that case the relator had been indicted in the State of New York for grand larceny. A requisition was made by the governor for his extradition from the State of Georgia.